The Reach
of
Congressional
Power: Specific Article I and IV PowersThe Issues:
How
far do the powers
of
Congress under the various grants extend?

Introduction

The United
States
is a government
of enumerated powers. Congress, and the other
two branches of the
federal government, can only exercise those powers
given in the
Constitution.

The
powers of
Congress
are enumerated in several places in the
Constitution. The most
important
listing of congressional powers appears in Article
I, Section 8 (see
left)
which identifies in seventeen paragraphs many
important powers of
Congress. In this section, we consider
how several of the
enumerated powers of Congress under the original
Constitution have been
interpreted.

COMMERCE
POWER

No
enumerated
power has justified
more exercises of congressional power than the
Article I, Section 8
power
to "regulate commerce among the several
states." The first major
challenge to the exercise of congressional power
under the Commerce
Clause
came in the 1824 case of Gibbons vs Ogden,
when two steamship
operators
with exclusive licenses granted by New York to ferry
passengers from
New
York City to Elizabethtown, New Jersey sued to block
Gibbons, a new
steamship
operator granted a license to ferry passengers on
the same route by
Congress,
from competing against them. Chief Justice
Marshall found that
the
Commece Clause granted Congress ample power to issue
the license to
Gibbons.
Commerce, wrote Marshall, is more than just the
buying and selling of
objects--it
includes all branches of commercial intercourse
between states,
including
navigation.

The
next
series of cases
illustrate two divergent approaches to analyzing
whether an activity is
reachable under the commerce power. In U.
S. vs E. C. Knight
the Court concluded that the Congress lacked the
power to reach a
monopoly
in the "manufacture" of refined sugar, but could
reach a "monopoly of
commerce"
involving sugar. The Knight case
illustrates the formal
(or
"categorical") approach to analyzing the reach of
the commerce
power.
The formal approach focuses on such questions as
whether the regulated
activitity is "in" or "outside" the stream of
commerce, whether the
activity
is "local" or "interstate," or whether the effects
of the activity on
interstate
commerce are "direct" or "indirect." The
contrasting empirical
approach,
illustrated by Houston E. & W. Ry. Co. vs
U. S., looks to
the
magnitude of the effect that the regulated
activity has on interstate
commerce,
without special regard to how the activity is
categorized. In Houston,
the Court upheld a federal agency's regulation of
freight rates on
travel
wholly within Texas because the freight
transporation within Texas was
found to be substantially affecting interstate
commerce.

Hammer
vs
Dagenhart
(1918) considered the constitutionality of the
Child Labor Act, which
banned
items produced by child labor from interstate
commerce. Adopting
the formal approach, the Court saw the Act as
unconstitutional attempt
to regulate a purely local matter, workplace
conditions. The harm
of child labor, the Court concluded, had nothing
to do with interstate
commerce and thus fell outside the reach of
congressional power.

Two girls working in Loudon Hosiery
Mills
(Tennessee)
in 1910.

N.L.R.
B.
vs Jones
(1937) represented an important turning point in
the Court's Commerce
Clause
jurisprudence. The year before, in a case
called Carter vs
Carter
Coal Co., the Court had invalidated a New
Deal program that
attempted
to regulate the wage and hour practices of coal
companies on the ground
that such practices were "local" and had only an
"indirect" effect on
interstate
commerce. Enraged by the Court's decision in
Carter and
other
cases, President Roosevelt proposed "packing the
Court" with
sympathetic
justices by increasing its size from nine to
fifteen. In N.L.R.
B. vs Jones, Chief Justice Hughes and
Justice Roberts side with the
government in voting to uphold an N.L.R.B. action
ordering the
reinstatement
of union organizing employees protected by federal
law at a
Pennsylvania
steel plant--the "switch in time that saved
nine." Over the
objections
of four dissenting justices who called the
interstate effects of the
regulated
activity "too indirect," the Court concluded that
the steel industry is
an interstate web of activities stretching from
the iron mines of
Minnesota
to the steel plants of Pennsylvania and thus the
manufacturing of steel
is properly reachable under the Commerce Clause.

U.
S. vs
Darby
(1941), in unanimously overruling Hammer vs
Dagenhart,
demonstrated
how much the Court had changed its approach to
Commerce Clause in a
generation.
Using a "substantial effects" test, the Court
upheld the Fair Labor
Standards
Act--an important piece of legislation that
effectively set national
minimum
wage and maximum hour laws by prohibiting the
interstate shipment of
goods
manufactured in violation of the federal
standards.

Once
having
established
that congressional exercises of power were valid
if shown to regulate
activities
"substantially affecting" interstate commerce, the
Court proceeded to
open
up more opportunities for exercise of the commerce
power by holding
that
an activity only trivially affecting interstate
commerce might
nonetheless
by regulated if all of the regulated activities of
various
individuals--taken
cumulatively--had substantial interstate
effects. In Wickard
vs
Filburn (1942), for example, the Court
upheld a $117 penalty
imposed
on a Ohio farmer for growing wheat on 12 more
acres than he was
permitted
to under the Agricultural Adjustment Act.
The Court relied on Wickard in the 2005 case of Gonzales v Raich,
upholding the
power of Congress to authorized seizure of
doctor-prescribed marijuana
allowed under the laws of California and other
states. The Court
in Gonzales noted
that local
use of medical marijuana had a cumulative effect
on the black market
for marijuana.

President Lyndon Johnson signing the
1964 Civil
Rights
Act

The
cumulative
effects
test also convinced the Court to uphold provisions
of the 1964 Civil
Rights
Act that required the 216-room Heart of Atlanta
Motel to rent its rooms
to persons regardless of race (Heart of Atlanta
vs U. S.)
and
outlawed racial discrimination at small
restaurants such as
Ollie's Bar-B-Q in Birmingham (Katzenbach vs
McClung). In
1971, legislation making loansharking a federal
crime was upheld on a
similar
basis (Perez vs U. S.) . The Heart of
Atlanta, McClung, and
Perez cases led to speculation that perhaps
any activity might be
regulated
under a loose application of the cumulative
effects test.

In
1995,
however, the
Supreme Court--for the first time in more than
half a
century--invalidated
a federal law on the ground that it was outside
the scope of the
commerce
power. In U. S. vs Lopez the Court,
by a 5 to 4 vote,
found
unconstitutional a provision of the Gun-Free
School Zone Act that made
it a federal crime to possess a gun (even one that
never traveled
across
state lines) within a thousand feet of a school
ground. It was
unclear
whether the government lost because the Congress failed
to make
adequate
factual findings about the impact of school
gun violence on
interstate
commerce or whether the Court was convinced that
the interstate impact
of possessing guns near schools had only an
insignificant effect on
interstate
commerce. The four dissenters argued that it
was sufficient for
the
Congress to show it had a rational basis for
finding a significant
effect
on interstate commerce.

In U.
S.
vs Morrison
(2000) the Court considered a suit brought by a
former student of
Virginia
Poytechnic Institute who alleged she was raped by
two university
football
players. The defendant players and
university argued that the
Violence
Against Women Act, which allowed victims of
gender- motivated violence
to bring federal civil suits for damages, was
outside of the scope of
the
commerce power. The Court agreed with the
defendants, even though
in this case Congress had made specific findings
that gender-motivated
violence deterred interstate travel, diminished
national productivity,
and increased medical costs. The Court
concluded that upholding
the
Violence Against Women Act would open the door to
a federalization of
virtually
all serious crime--as well as family law and other
areas of traditional
state regulation. The Court said that
Congress must distinguish
between
"what is truly national and what is truly
local"--and that its power
under
the Commerce Clause reaches only the former.
In a concurring
opinion,
Justice Thomas went even further, urging
abandonment of "the
substantial
effects" test.

Christy Brzonkala, the former student
at VPI
whose efforts
to receive compensation for an alleged rape were
ended by the Supreme
Court
in U. S. vs Morrison.

In the
closely watched case of National
Federation of Independent Business v Sebelius(2012),
the Court considered whether the Affordable Care
Act of 2010, the Obama Administration's
signature piece of legislation was
constitutional. The Court, on a 5 to 4
vote, found that the individual mandate
provision of the Act, which required all persons
to buy health insurance or pay a penalty, was
outside of Congress's powers under the Commerce
Clause. (The individual mandate, also on a
5 to 4 vote, survived, however, as a valid
exercise of Congress's taxing power.)
Chief Justice Roberts concluded that the
Commerce Clause gave Congress no power to
regulate inactivity (here, the decision of an
individual not to buy health insurance.)
To allow such a power, Roberts argued, would
give almost limitless power to Congress because
there are "an infinite number" of things people
do not do everyday. Congress might even,
Roberts wrote, order people to buy
broccoli. The four dissenters (Ginsburg,
Sotomayor, Breyer, and Kagan) dissented on the
Commerce Clause question, accusing the majority
of returning to the categorical approach that
had properly been long abandoned by the
Court. In the view of the dissenters, the
failure of healthy individuals to buy health
insurance had obvious and substantial effects on
the health care market, which represents almost
one sixth of the U.S. economy. The
dissenters argued that precedents such as Wickard v Filburn
supported the exercise of power.

Can the federal
government make you buy broccoli?

Critics of the
Affordable Care Act ("Obamacare") argued
that "the individual mandate" (the provision
requiring individuals to purchase health
insurance or pay a penalty) was outside of
Congress's power to regulate commerce.
The rallying cry of critics became, "If
Congress can make you buy health insurance,
they can make you buy broccoli!"
Whether the two situations are
distinguishable became a debating point in National
Federation of Independent Business v
Sebelius (2012), with broccoli
being mentioned twelve times in the various
opinions. A few references to the
leafy green vegetable:

Indeed,
the Government's logic would justify a
mandatory purchase to solve almost any
problem to "identify any mandate to purchase
a product or service in interstate commerce
that would be unconstitutional" under its
theory of the commerce power. To consider a
different example in the health care market,
many Americans do not eat a balanced diet.
That group makes up a larger percentage of
the total population than those without
health insurance. The failure of that group
to have a healthy diet increases health care
costs, to a greater extent than the failure
of the uninsured to purchase insurance.
Those increased costs are borne in part by
other Americans who must pay more, just as
the uninsured shift costs to the insured.
Congress addressed the insurance problem by
ordering everyone to buy insurance. Under
the Government's theory, Congress could
address the diet problem by ordering
everyone to buy vegetables.... According to
the Government, upholding the individual
mandate would not justify mandatory
purchases of items such as cars or broccoli
because, as the Government puts it,
"[h]ealth insurance is not purchased for its
own sake like a car or broccoli; it is a
means of financing health-care consumption
and covering universal risks." But cars and
broccoli are no more purchased for their
"own sake" than health insurance. They are
purchased to cover the need for
transportation and food. (Chief
Justice Roberts)

As an example of the type of regulation he
fears, The Chief Justice cites a
Government mandate to purchase green
vegetables. One could call this
concern "the broccoli horrible."...Consider
the chain of inferences the Court would have
to accept to conclude that a
vegetable-purchase mandate was likely to
have a substantial effect on the health-care
costs borne by lithe Americans. The Court
would have to believe that individuals
forced to buy vegetables would then eat them
(instead of throwing or giving them away),
would prepare the vegetables in a healthy
way (steamed or raw, not deep-fried), would
cut back on unhealthy foods, and would not
allow other factors (such as lack of
exercise or little sleep) to trump the
improved diet. Such "pil[ing of] inference
upon inference" is just what the Court
refused to do in Lopez and Morrison....When
contemplated in its extreme, almost any
power looks dangerous. The commerce power,
hypothetically, would enable Congress to
prohibit the purchase and home production of
all meat, fish, and dairy goods, effectively
compelling Americans to eat only vegetables.
Yet no one would offer the "hypothetical and
unreal possibilit[y]" of a vegetarian state
as a credible reason to deny Congress the
authority ever to ban the possession and
sale of goods. The Chief Justice
accepts just such specious logic when he
cites the broccoli horrible as a reason to
deny Congress the power to pass the
individual mandate.... (Justice Ginsburg)

Two Basic
Tests

The Supreme Court has
vacillated between two basic types of
tests when interpreting the commerce
power of Congress. Each basic type
of test has its variations and
refinements, but they reflect different
core approaches:1.
The Empirical Test: The
empirical test is factual in nature,
looking at the effects of the regulated
activity and the degree to which they
impact interstate commerce. In one
formulation, the Court looks to see
whether the regulated activity has "a
substantial economic effect" on interstate
commerce. In various applications of
this empirical test, the Court has looked
at the cumulative impact of regulated
private actions to see whether, taken
collectively, the effects are substantial.2.
The Formal (or "Categorical") Test: This
approach applies labels to a regulated
activity and, depending on the label, the
regulated activity is determined to either
be reachable or unreachable under
Congress's commerce power. For
example, the Court might ask whether the
activity is "in" or "outside" the stream
of commerce, or whether the regulated
activity is a "local" or an "interstate"
activity, or whether the economic effect
on interstate commerce is "direct" or
"indirect," or whether what is being
regulated is economic "activity" or
"inactivity."

Today, the Court accepts generally accepts
the power of Congress (1) to regulate the
channels of interstate commerce, (2) to
protect the instrumentalities of
interstate commerce and any goods or
persons that travel in interstate
commerce, and (3) to regulate any
activities that "substantially affect
interstate commerce." (Gonzales v
Raich, 2005).

Angel Raich,
allowed to
use marijuana for medical purposes under
California's Compassionate Use
Act, sued Attorney General Gonzales to prevent
further federal raids on
her home and garden. (American Bar Journal photo)

In 2005,
the Supreme Court decided the case of Gonzales v
Raich.
The case raised the issue of whether federal
drug laws prohibiting the
private possession of marijuana preempt
state laws that authorize
possession and consumption for medical
pruposes with a doctor's
prescription. After the DEA seized
doctor-prescribed marijuana
from the home of a patient, Angel Raich and
other patients sued. The
United States contended that laws
authorizing
medical marijuana in California and 10 other
states interfere with
federal drug enforcement. Raich and
fellow medical marijuana user
Diane Monson argued that medical marijuana
grown and consumed entirely
on private property, or provided by a local
medical caregiver, is
not "an article of commerce" within the
power of Congress to
regulate.
The question the Court considered was: "Is
this case
distinguishable from the wheat-consumer in
Wickard v Filburn?" An
answer, by a 6 to 3 vote, was "no."
Writing for the Court,
Justice Stevens found that the power of
Congress to regulate local
activities as part of a "class of
activities" that substantially affect
interstate commerce was "well
established." The Court concluded
that the doctor-prescribed marijuana has a
significant impact on both
the supply and demand for black market
marijuana, which was clearly
within the power of the federal government
to regulate. Joining
the liberals in the majority were
conservatives Scalia and Kennedy, who
have been skeptical of strained exercises of
the Commerce Clause power
in other contexts. Justices O'Connor,
Rehnquist, and Thomas
dissented.

The Congress shall have Power To lay and collect
Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for
the common Defence and
general
Welfare of the United States; but all Duties,
Imposts and Excises shall
be uniform throughout the United States;

To borrow Money on the credit of the United
States;

To regulate Commerce with foreign
Nations,
and
among the several
States, and with the Indian Tribes;

To establish an uniform Rule of
Naturalization,
and uniform Laws
on the subject of Bankruptcies throughout the
United States;

To coin Money, regulate the Value
thereof,
and of
foreign Coin,
and fix the Standard of Weights and
Measures;

To provide for the Punishment of
counterfeiting
the Securities
and current Coin of the United States;

To establish Post Offices and post
Roads;

To promote the Progress of Science and
useful
Arts, by securing
for limited Times to Authors and Inventors the
exclusive Right to their
respective Writings and Discoveries;

To constitute Tribunals inferior to the
supreme
Court;

To define and punish Piracies and
Felonies
committed on the high
Seas, and Offences against the Law of
Nations;

To declare War, grant Letters of Marque
and
Reprisal, and make
Rules concerning Captures on Land and
Water;

To raise and support Armies, but no
Appropriation
of Money to
that Use shall be for a longer Term than two
Years;

To provide and maintain a Navy;

To make Rules for the Government and
Regulation of
the land and
naval Forces;

To provide for calling forth the
Militia to
execute the Laws of
the Union, suppress Insurrections and repel
Invasions;

To provide for organizing, arming, and
disciplining, the Militia,
and for governing such Part of them as may be
employed in the Service
of
the United States, reserving to the States
respectively, the
Appointment
of the Officers, and the Authority of training
the Militia according to
the discipline prescribed by Congress;

To exercise exclusive Legislation in
all
Cases
whatsoever, over
such District (not exceeding ten Miles square)
as may, by Cession of
particular
States, and the Acceptance of Congress, become
the Seat of the
Government
of the United States, and to exercise like
Authority over all Places
purchased
by the Consent of the Legislature of the State
in which the Same shall
be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards,
and other
needful
Buildings;--And

To make all Laws which shall be
necessary
and
proper for carrying
into Execution the foregoing Powers, and all
other Powers vested by
this
Constitution in the Government of the United
States, or in any
Department
or Officer thereof.

Article IV, Section 3

New States may be admitted by
the Congress
into this Union; but
no
new State shall be formed or erected within
the Jurisdiction of any
other
State; nor any State be formed by the
Junction of two or more States,
or
Parts of States, without the Consent of the
Legislatures of the States
concerned as well as of the Congress.

The Congress shall have Power to
dispose of
and
make all needful
Rules and Regulations respecting the Territory
or other Property
belonging
to the United States; and nothing in this
Constitution shall be so
construed
as to Prejudice any Claims of the United
States, or of any particular
State.

Amendment XVI(Ratified February 3, 1913.)

The Congress shall have power to lay and collect
taxes on incomes, from
whatever source derived, without apportionment
among the several
States,
and without regard to any census or
enumeration.

Article I,
Section 8 gives
Congress the power to "lay and collect taxes,
duties, imports, and
excises."
The Constitution allows Congress to tax in order
to "provide for the
common
defense and general welfare."The
Court has
flip-flopped
on the issue of whether Congress has the
constitutional power to tax in
order to accomplish regulatory goals that would
otherwise be outside of
the scope of its enumerated powers. In Bailey
vs Drexel
Furniture
(1922), the Court invalidated a 10% tax on
the annual profits of
employers
who knowingly employ child labor. The tax,
imposed after an
earlier
attempt to block the interstate transportation
and sale of products
produced
by child labor was struck down in Hammer,
was seen by the Court
as an unconstitutional attempt to make an
end-run around its earlier
decision.
The Court reversed its ban on taxes serving
primarily regulatory
(rather
than revenue-producing) goals in Steward
Machine (1937), which
upheld
a tax on employers designed to encourage states
to enact unemployment
compensation
schemes. In Kahriger (1953), the
Court upheld a law
requiring
bookies to register and pay on tax on all
wagers--even though the tax
had
the regulatory goal of wiping out bookmaking
operations and could not
be
expected to produce significant
revenue.

In perhaps the most significant taxing
power case ever decided, the Court ruled in National
Federation of Independent Business v Sebelius
(2012) that the so-called "individual mandate"
(generally considered a requirement that
individuals purchase health insurance) contained
in the Affordable Care Act could be sustained as
a tax, even though the requirement was outside
of Congress's power to regulate commerce.
Writing for five members of the Court, Chief
Justice Roberts held that even though proponents
of the Act consistently said a penalty, not a
tax, would apply to individuals who failed to
purchase insurance, it still operated as a tax
and that a functional analysis should
control. The Court noted that failure to
purchase insurance required a payment to the
IRS, that no criminal penalties attached to
failure to purchase insurance, and that the cost
of the tax would, in most cases, be less than
the cost of buying insurance. In sum, the
law did not make it unlawful to purchase
insurance, allowing individuals a choice of
paying a tax instead. Roberts also
reaffirmed that the Congress may seek to achieve
regulatory goals through its taxing power that
it might not be able to achieve under its other
Article I powers. Justices Kennedy, Alito,
Scalia, and Thomas dissented, arguing that the
taxing power could not sustain the mandate.

In the 1987
case
of South
Dakota vs Dole, the Supreme Court
considered a federal law that
required
the Secretary of Transportation to withhold 5%
of a state's federal
highway
dollars if the state allowed persons less than
21 years of age to
purchase
alcoholic beverages. South Dakota, which
allowed 18-year-olds to
drink and stood to lose federal funds for
highway construction, sued
Secretary
Dole, arguing that the law was not a
constitutional exercise of the
power
of Congress to spend--but rather was an attempt
to enact a national
drinking
age. In upholding the federal law, the Court
announced a four-part test
for evaluating the constitutionality of
conditions attached to federal
spending programs: (1) the spending power must
be exercised in pursuit
of the general welfare, (2) grant conditions
must be clearly stated,
(3)
the conditions must be related to a federal
interest in the national
program
or project, and (4) the spending power cannot be
used to induce states
to do things that would themselves be
unconstitutional. The Court
considered--perhaps unrealistically--the grant
condition to be a
financial
"inducement" for South Dakota to enact a higher
drinking age rather
than
financial "compulsion" to do so--suggesting the
possibility of a
different
result if a higher percentage of funds had been
withheld. In
dissent,
Justice O'Connor argued that spending conditions
should be found
constitutional
only if they related to how the federal grant
dollars were to be spent.

In
2012, the Court considered whether provisions of
the Affordable Care Act, which withheld federal
funds from states that failed to expand
Medicaid coverage in specified ways, was within
the power of Congress under the Spending
Clause. In National Federation of Independent
Business v Sebelius, the Court held
that it was unconstitutional to threaten states
with the withholding of all federal Medicaid
funding, including their existing funding, for
failing to expand coverage in the ways Congress
sought to encourage. Chief Justice
Roberts, in a part of his opinion joined by
Justices Breyer and Kagan, concluded that
federal funds withheld, representing perhaps 10%
of a state's entire budget, was so substantial
that states would have no real choice but to
give into Congress's demands. As a result,
seven justices agreed that the Affordable Care
Act's Medicaid expansion provisions violated the
principle that the spending power can not be
used to coerce states into enacting legislation
or participating in a federal program. The
Court distinguished South Dakota v Dole, noting
that the funds potentially lost by South Dakota
in that case representing only one-half a
percent of the state's budget.

In 1976, a
dispute over 19
wild burros rounded up on federal land and sold
by New Mexico's
Livestock
Board reached the Supreme Court (New Mexico
vs Kleppe).
The
Department of Interior argued the New Mexico's
action violated the Wild
Free-Roaming Horses and Burros Act, while New
Mexico countered that the
Act exceeded the power granted to Congress by
the Property Clause of
Article
IV, Section 3. New Mexico contended that
Congress could regulate
only those state actions on federal land that
threaten to damage public
lands. The Court, however, rejected this
narrow
interpretation.
Congress has the power to enact "needful"
regulations "respecting" the
public lands and--according to the Court---what
is a "needful"
regulation
is a decision "entrusted primarily to the
judgment of Congress."
The Court concluded the federal government "has
a power over its own
property
analogous to the police power" of the
states. The Court did "not
think it appropriate [in Kleppe]...to
determine the extent to
which
the Property Clause empowers Congress to protect
animals on private
lands."

1. What is "commerce"? Is it just the buying
and selling of
goods, or should it be interpreted to include, as Chief
Justice
Marshall
says in Gibbons, all the branches of commercial
intercourse,
including
the manufacture and transportation of goods?
2. The Constitution gives Congress the power to
regulate commerce
"among" the several states. Does that mean "between"
the states,
or could it also mean "among the people"--that is, even within
a
state?
3. What would have been the economic future of the
United States
if Gibbons had gone the other way?
4. Which of the two basic approaches to Commerce
Clause analysis
is better, the "empirical test" (e.g., "substantial
effects") or the
categorical
approach that seeks to label effects as "direct" or
"indirect" or
activities
as "local" or "national." What are the advantages
and
disadvantages
of each approach?
5. Does the power to "regulate" commerce include the
power to
ban outright certain articles of commerce--such as lottery
tickets,
firecrackers,
hand grenades, or marijuana? 12. Is taking a
woman across
state
lines for immoral purposes "commerce"? (The Court
thought so in a
decision upholding the constitutionality of the Mann Act.)
6. Should the Court examine the motive of Congress
in enacting
legislation under its commerce power, or just analyze the
connection of
the regulation to interstate effects? In Hammer
vs Dagenhart,
the Court was influenced by its conclusion that Congress
really
legislated
because it disapproved of child labor, rather than out of
any genuine
concern
for how child labor was affecting the national economy or
the dangers
posed
by articles produced by child labor. Should the
motive of
Congress
been a factor?
7. N.L.R.B. vs Jones, along with U. S. vs
Lopez
years later, is generally considered one of the two key
turning points
in Commerce Clause jurisprudence. What makes it so?
8. Does the "cumulative effects" approach of Wickard
represent
a major expansion of the "substantial effects" test as
employed
previously?
9. After McClung and Heart of Atlanta
Motel,
could
you imagine any eating establishment or motel that
would be outside
the reach of Congress's power under the Commerce
Clause to enact
civil rights laws prohibiting discrimination against
patrons or guests?
10. Lopez and Morrison raise serious
questions
about the ability of Congress to enact laws providing
federal
punishment
or federal remedies for conduct traditionally regulated
under state
criminal
codes. Which of the following are likely to be
upheld?: (1) a law
making "carjacking" a federal crime? (2) a law
making "drive-by
shootings"
a federal crime? (3) a law making it a federal crime
to carry out
any action designed to terrorize? (4) a law making
child
molestation
a federal crime? (5) a law making child pornography
a federal
crime?
11. How does Congress distinguish, as Morrison
requires
it to do, between "what is truly national and what is
truly local."?
12. National Federation of Independent Business draws a
line between commercial activity, which Congress can
regulate, and inactivity, which it cannot. Many
economists argue that any example of inactivity can be
re-described as another sort of activity, but Justice
Roberts says the Framers were practical men, not students
of metaphysics, and would have appreciated the
difference. Do you think he is right?
13. The dissenters suggest that the
inactivity/activity line is just a return to the
discredited categorical approaches of the past, and that
the Court should have focused on the impact that people
without health insurance were having on the overall
market. Will this categorical distinction last, and
how much of a limitation will it prove to be on attempts
by Congress to enact social welfare legislation?

TAXING & SPENDING POWERS--
QUESTIONS

1. Does Congress have the power to tax for a purely
regulatory,
non-revenue
raising, goal? Could Congress require all
prostitutes to register
and pay a tax if it could not make prostitution a federal
crime
directly?
2. Do the Court's recent Commerce Clause decisions
give reason
to think the Court will also tighten up the Congress's use
of its
taxing
and spending powers?
3. In South Dakota vs Dole, is it clear that
South
Dakota's
lower drinking age jeopardized federal interests in the
national
highway
program? If so, how substantially?
4. Could Congress condition the receiving of federal
dollars
to fight crime on a state's having enacted the death
penalty?
How--if
at all--would such a condition differ from the condition
upheld in South
Dakota vs Dole?
5. What result in South Dakota vs Dole if
South Dakota
stood to lose all federal highway money if it
didn't raise its
drinking
age? What if it stood to lose 30%?
6. Does the Court's decision in National Federation
of Independent Business v Sebelius suggest that Congress
will increasingly rely on its taxing power to accomplish
goals it may not be able to accomplish under its commerce
power?
7. Do you think that the description of a mechanism
in an act as a "penalty" not a "tax" should control, or
was the Court correct to use a functional analysis to
conclude that the individual mandate penalty/tax operated
as a tax--no criminal punishment, for example, for not
purchasing health insurance so long as you make the
payment to the IRS (and the amount paid will generally be
less than the cost of insurance)?
8. Does the Court's ruling in the Affordable Care
Act case suggest the Court will be closely scrutinizing
large federal grant programs in the future? Note
that SEVEN justices agreed that withholding federal funds
from states that failed to expand their Medicaid coverage
was outside of Congress's Spending Clause power.

THE PROPERTY CLAUSE-- QUESTIONS

1. Does the Property Clause give the
Congress the power
to
protect wildlife on private land that spends most
of its time
on
federal land (on national park, national wildlife refuge,
national
forest,
or BLM land)? Does the Property Clause empower the
Congress to
protect
a grizzly bear or wolf wanders from federal land onto the
private land
of a rancher?--or is the rancher free to fire away, state
law
permitting?
2. Does the Property Clause empower Congress to
regulate private
activities on private land that adversely effect public
lands, such as
air pollution from a nearby plant, bright lights from neon
advertising,
or noise from a racetrack?
3. Does Article IV, Section 3 give Congress the
power to regulate
any behavior of residents of U. S. Territories that it
chooses to,
provided
no other provision of the Constitution is offended?
For example,
could the Violence Against Women Act provision invalidated
in Morrison
be enforceable in U. S. Territories (such as Guam or
Puerto
Rico), even though it can't
be in the fifty states?

In 2003,
the
Supreme Court decided Eldred v Ashcroft, which
provided the Court its first opportunity to
interpret the power of
Congress
under Article I to extend copyright protection to
authors "for limited
times." Eldred operated a website that offered
for sale works
for
which copyright protection had expired (or "fallen
into the public
domain").
He challenged the constitutionality of the Copyright
Term Extension Act
of 1998--sometimes called the "Mickey Mouse
Protection Act" because
Disney
had lobbied hard for extension of its copyright
protection for Mickey
Mouse,
which was nearing the end of its 75-year term of
protection under
existing
copyright law. Simply put, the argument of
Eldred and his many
supporters
(including librarians and academics who argue that
creativity will
benefit
from allowing use of expired works) was that
"limited times" doesn't
mean
"forever"--and that 75 years of protection is more
than enough time to
provide an adequate financial incentive for
authors. Eldred
noted
that Congress's first copyright act offered only seventeen
years
of protection. By a
vote of
7 to 2, the Court ruled in Eldred that
Congress did not exceed
its
power under the Copyright Clause.

The
power to
protect original works
of authorship:Eldred vs
Ashcroft (2003) and other legal
documents are accessible from: Harvard's
Open
LawEric Eldred, plaintiff in
suit
challenging the constitutionality
of the 1998 Sonny Bono Copyright Term
Extension Act(photo: ABA Journal)